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Business Taxes Law Guide – Revision 2018

Occupational Lead Poisoning Prevention Fee Regulations

Title 17 of the California Code of Regulations

Article 2. Waivers of the Occupational Lead Poisoning Fee

Regulation 38002

Regulation 38002. Fee Waiver Eligibility.

Authority cited: Sections 105185 and 105191, Health and Safety Code.

Reference: Sections 105190(e) and 105191(b), Health and Safety Code.

(a) An employer in an industry listed in section 38005 is eligible for a waiver of the Occupational Lead Poisoning Fee if the employer can demonstrate, by completing the procedures specified in section 38003, that:

(1) Lead was not present at the place of employment during the prior calendar year; or

(2) Lead was present at the place of employment during the prior calendar year only in a de minimus amount.

(b) An employer in an industry listed in section 38005 is not required to pay the Occupational Lead Poisoning Fee if the employer had fewer than 10 employees during the previous year.

(c) An employer in an industry listed in section 38005 that involves painting, including but not limited to Standard Industrial Classification Code 1721, "Painting and Paper Hanging," is not eligible for a fee waiver if, in the operation of the employer's business in the prior calendar year, any employees altered or disturbed paint in or on a building constructed prior to 1978 or on a painted metal structure, unless the employer demonstrates that lead was not present in any of the altered or disturbed paint, or was present only in a de minimus amount.

(d) An employer in an industry listed in section 38005 that involves demolition, including but not limited to Standard Industrial Classification Code 1795, "Wrecking and Demolition Work," is not eligible for a fee waiver if, in the operation of the employer's business in the prior calendar year, any employees altered or disturbed a painted metal structure, or a building with painted surfaces that was constructed prior to 1978, unless the employer demonstrates that lead was not present in any of the disturbed paint, or was present only in a de minimus amount.

(e) An employer in an industry listed in section 38005 that involves handling or processing of scrap metal, including but not limited to Standard Industrial Classification Code 5093, "Scrap and Waste Materials," is not eligible for a fee waiver if, in the operation of the employer's business in the prior calendar year, any employees altered or disturbed materials that may contain lead or have a lead-containing coating, unless the employer demonstrates that lead was not present in any of the altered or disturbed materials, or was present only in a de minimus amount.

(f) An employer's request for a fee waiver may be denied for any of the following reasons:

(1) Identification of the presence of lead in a greater than de minimus amount at the place of employment or in the materials or processes used in the operation of the employer's business; or

(2) Failure of an employer to request a fee waiver and supply the documentation required in section 38003(d) within 180 days following the due date of the Occupational Lead Poisoning Fee; or

(3) Failure of an employer to provide sufficient and accurate information by which to evaluate the request for a fee waiver.

(g) The Department shall give written notice to the employer of the denial of an employer's request for a fee waiver and the reason or reasons for the denial.

(h) An employer whose request for a fee waiver is denied shall have 15 working days from receipt of notice of the denial to request a reconsideration of the denial and to supply any additional facts which the employer believes support the granting of the fee waiver request.

History: New section filed 1-15-93 as an emergency; operative 1-15-93 (Register 93, No. 3). A Certificate of Compliance must be transmitted to OAL 5-17-93 or emergency language will be repealed by operation of law on the following day.

Certificate of Compliance as to 1-15-93 order including of amendment of subsections (a), (g)(1)-(2), (h) and (i) transmitted to OAL 4-28-93 and filed 6-10-93 (Register 93, No. 24).

Amendment of section and Note filed 5-1-97 as an emergency; operative 5-1-97 (Register 97, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-97 or emergency language will be repealed by operation of law on the following day.

Certificate of Compliance as to 5-1-97 order transmitted to OAL 8-8-97 and filed 9-17-97 (Register 97, No. 38).

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